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PETITIONER: MANMOHAN SINGH JAITLA, ETC. ETC

       Vs.

RESPONDENT: THE COMMISSIONER. UNION TERRITORY CHANDIGARH AND ORS. ETC.

DATE OF JUDGMENT19/12/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KHALID, V. (J)

CITATION:  1985 AIR  364            1985 SCR  (2) 479  1984 SCC  Supl.  540     1984 SCALE  (2)991  CITATOR INFO :  R          1986 SC1571  (57)  R          1989 SC 341  (14)

ACT:      Punjab Aided Schools (Security of Service) Act, 1969-S. 3-Holding of  inquiry before  dismissing an  employee of  an aided school  is mandatory-S.  3 is  beneficial provision-On appointment teacher  asked  to  enter  into  agreement  with school  management-Agreement   in  derogation  of  mandatory provision-Managing Committee  terminated service  of teacher without holding inquiry by invoking conditions of agreement- Whether amounts  to  colourable  exercise  of  power-Whether order of termination of service bad and ab initio void.        Constitution   of  India   Art  227-Scope   of   writ jurisdiction-Expression ’Tribunal  in Art.  227  comprehends Deputy Commissioner  and Commissioner  which  are  statutory quasi-judicial authorities  under the  Punjab Aided  Schools (Security  of  Service)  Act  1969-Deputy  Commissioner  and Commissioner are amenable to the writ jurisdiction.       Interpretation-Any  agreement not  in consonance  with the statutory  provisions beneficial  to a  class in need of protection  cannot   be  given  effect  to    it  stands  in derogation of the mandatory provisions of the statute.

HEADNOTE:       Section  3 of  the Punjab  Aided Schools  (Security of Service) Act,  1969 (’1969  Act’ for short) provides that no employee shall  be dismissed  or removed  or reduced in rank except after  an inquiry to be held in the manner prescribed therein. Sub-sec. (2) provides that no order of dismissal or removal or  reduction in  rank of  an  employee  shall  take effect  unless   it  has   been  confirmed   by  the  Deputy Commissioner who may refuse to do so. if in his opinion, the provisions of sub-sec. (I) have not been complied with. Sub- sec. (S)  permits an  aggrieved person  to prefer  an appeal against any  decision or  order of  the Deputy  Commissioner under the section to the Commissioner.       The  appellant in  the civil  appeal was  appointed as Headmaster of  an aided  school which received 95 percent of its expenses  as grant  from the  Government. As required by the conditions  of his  appointment, the  appellant  entered into an  agreement with  the management  of the  school. The

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appellant’s  appointment  was  confirmed  by  the  concerned authority. The  appellant was  confirmed in  his post as the Headmaster. The appellant was 480 awarded  a   certificate  of   honour  by   the   Chandigarh administration in  token of  appreciation of the outstanding performance of the appellant. After the term of the Managing Committee which  appointed the appellant expired and the new Managing Committee  took over, the services of the appellant were terminated  invoking the  conditions of  the  agreement entered into by the appellant. The appellant’s appeal to the Deputy Commissioner  and the  Commissioner were turned down. The appellant’s  writ petition  was dismissed  by  the  High Court in  limine. The High Court observed that as the school cannot be  said to be ’other authority’ under Art. 12 of the Constitution, it  was not  amenable to the writ jurisdiction of the High Court. Hence this appeal by Special Leave.       The petitioner in the writ petition was appointed as a Drawing   Teacher in  1976. As required by the conditions of his appointment  the petitioner  entered into  an  agreement with the  management. In 1983 the petitioner’s services were terminated invoking  the conditions  of the  agreement.  The petitioner  approached   the  Deputy  Commissioner  and  the Commissioner without success. Thereupon he field the present writ petition under Art. 32 of the Constitution.       Allowing both the appeal and the writ petition, ^        HELD:  Any  agreement  not  in  consonance  with  the statutory provisions  beneficial  to  a  class  in  need  of protection cannot  be  given  effect  to  if  it  stands  in derogation of  the  mandatory  provisions  of  the  statute. Section 3  of the  1969 Act  makes it  obligatory to  hold a disciplinary inquiry  before an  employee of an aided school can be either dismissed removed or reduced in rank. In order to circumvent  this mandatory  provision, a  resort  to  the provisions of  the agreement in the context of the fact that an inquiry  was commenced and given up clearly indicates the true nature  of the  order as well as colourable exercise of power. And this was done by the new Managing Committee which appeared to  be keen to dispense with the service of persons appointed by the outgoing Managing Committee. This smacks of malafide. For  these reasons  the order  of  termination  of service of the appellant is bad and ab initio void. [485E-G]       The  High Court  declined to  grant any  relief on the ground that  an aided  school is not ’other authority’ under Act. 12 of the Constitution and is therefore not amenable to the writ  jurisdiction of  the High  Court. The  High  Court clearly overlooked  the point  that Deputy  Commissioner and Commissioner are  statutory authorities  operating under the 969, Act.  They are  quasi-judicial authorities and that was not disputed.  Therefore, they   will be comprehended in the expression  ’Tribunal’   as  used   in  Art.   227  of   the Constitution which confers power of superintendence over all courts and  tribunals  by  the  High  Court  throughout  the territory in  relation to  which it  exercises jurisdiction. Obviously, therefore,  the decision  of the statutory quasi- judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari  by   the  High  Court  under  Art.  227  of  the Constitution. The  decision questioned before the High Court was  of   the  Deputy   Commissioner  and  the  Commissioner exercising power  under Sec.  3 of  the 1969  Act. And these statutory 481 authorities are  certainly amenable to the writ jurisdiction

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of the High Court. [485G-H; 486A-C]       After  the decision  of the Constitution Bench of this Court in Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors. etc. the  aided school  receiving 95%  of expenses by way of grant from  the public  exchequer and  whose employees  have received the statutory protection under the 1969 Act and who are  subject   to  the   relations  made  by  the  Education Department of  the Union Territory of Chandigarh as also the appointment of  Headmaster to  be valid  must be approved by the Director  of Public  Instructions ,  would certainly  be amenable to  the writ jurisdiction of the High Court. [486C- D]       Ajay  Hasia etc.  v. Khalid  Mujib Sehravardi and Ors. etc., [1981] 2 SCR 79, referred to.       The  Deputy Commissioner and the Commissioner in terms held in  both the  cases that  because of  the terms  of the agreement entered  into by  each of  the teachers  with  the management of the school, it would not be open to them to go behind the  order and  to find  out the  true nature  of the order. Now  if the  management  of  the  school  intends  to circumvent the  mandatory provisions  of Sec.  3 of the 1969 Act, it  has merely  to terminate  the service by giving one month’s  notice   as  provided  in  the  agreement  and  the provisions  controlling   the  arbitrary   powers   of   the management to  hire and  fire can  be rendered nugatory. The Deputy Commissioner  cannot take  an easy  recourse becoming oblivious to  his duties  merely to  pay lip sympathy to the order made by the management and decline even to examine the allegation of malafide as also the true nature and character of the impugned order. [484B-D]

JUDGMENT:       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2137 of 1984.       From  the Judgment  and Order  dated  24.2.83  of  the Punjab and Haryana High Court in Civil Writ No.1086/83.                             WITH               Writ Petition No. 11238 of 1983             Under Article 32 of the Constitution       K.G.  Bhagat, Additional  Solicitor General  and Vimal Dave for the appellant in CA. No. 2137/84.       K.G. Bhagat, Additional Solicitor General and Ms. Asha Rani Jain for the petitioner in WP. N o. 11238/83.       Prithvi Raj and R.C. Pathak for the respondents.       The Judgment of the Court was delivered by 482      DESAI, J. Guru Nanak Khalsa High School ( ’ School’ for short) an  aided school  and hence  governed by  The  Punjab Aided Schools  (Security of  Service) Act,  1969 (’1969 Act’ for short)  in its  application to  the Union  territory  of Chandigarh dispensed  with the  service of the Headmaster of the School,  appellant Shri  Manmohan Singh  Jaitla, and the drawing teacher  Amir Singh claiming to exercise power under an agreement executed by each of them with the management of the school.  Admittedly, the  school  receives  95%  of  its expenses as  grant from  the Government and for contribution 5% of  the expenses claims thoroughly arbitrary powers to be presently pointed out which appears to be anachronistic. The action of the Managing Committee of the school in dispensing with the  services of  both the  aforementioned  persons  is questioned in  these two  matters on  more or less identical grounds and therefore they were heard together and are being disposed of by this judgment.

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In Re: C.A. No. 2137/84:      Pursuant to  an advertisement  inviting application for the post  of  Headmaster  of  the  School,  appellant-  Shri Manmohan  Singh   Jaitla  applied   for  the  same.  He  was interviewed on  March 28,  1976 and  on the  same day by the order  of  the  same  date,  he  was  offered  the  post  of Headmaster in  the school in the prescribed scale with usual allowances sanctioned  by the  Education Department, Chandi- garh Administration  for grant-in-aid  Schools. The order of appointment provided that the appointee will be on probation for a  period of  one year  and that  he will be required to enter into  an agreement  with  the  school.  The  appellant accepted  the  appointment  order  and  joined  service.  As required by  the regulations  of the Education Department of Chandigarh Administration,  his appointment  was subject  to confirmation by  the Director  of  Public  Instruction.  The confirmation was  granted as  per the order dated August 11, 1976. By  the resolution  of the  Managing Committee  of the School dated  June 2, 1977, the appellant was confirmed with effect from  May 1, 1977 in post as the Headmaster. In token of the  appreciation of  the outstanding  performance of the appellant as  Headmaster in  the field  of academic work/co- curricular activities  and administration during the session 1980-81, he  was awarded  a certificate  of  honour  by  the Finance  and   Education  Secretary,   Union  Territory   of Chandigarh, on  August 10, 1981. It appears that the term of the earlier  Managing Committee  expired and  a new Managing Committee took  over with  effect  from  March  24,1982.  On January 31,1983,  the Education  Managing Committee  of’ the school informed the appellant that his 483 services were  no longer required with effect from that very day i.e. January 1983 and in terms of Condition No. (iii) of the agreement  entered into  by him, he would cease to be in the employment  of the  school and was directed to hand over charge to  Mrs. Gurcharan  Kaur. The  appellants application for relief  to the Deputy Commissioner under sub-sec. (2) of Sec.  3   of  the   1969  Act  was  turned  down.  After  an unsuccessful  appeal  to  the  Commissioner,  the  appellant approached  the   High  Court   of  Punjab  and  Haryana  at Chandigarh under  Art. 227  of the  Constitution.  The  High Court rejected the writ petition in limine but by a speaking order observing  that as  the school]  cannot be  said to be ’other authority’  under Art. 12 of the Constitution, it was not amenable  to the  writ , jurisdiction of the High Court. Hence this appeal by special leave. In Re W. P. No. 11238/83:       Petitioner  Amir Singh  was appointed  by the Managing Committee of  the School  on March  21, 1976  as  a  Drawing Teacher as per the appointment order No.1265 dated March 21, 1976. This  appointment was made upon an application made by the petitioner and after he was interviewed by the concerned committee of  the school.  The appointment  order spells out some of  the conditions  of appointment,  one of them may be noticed. The  appointee had  to enter into an agreement with the management of the school. The petitioner was informed by a letter  dated February 28, 1983 that as per the resolution adopted by  the Managing  Committee of  the school,  it  was resolved to  terminate the  service of  the petitioner as no longer required  with effect  from the fore-noon of March 4, 1983 in  terms of  first part of clause (6) of the agreement entered into  between the petitioner and the Management. The petitioner  approached   the  Deputy  Commissioner  and  the Commissioner without  success. Thereupon  he  filed  present petition under Art. 32 of the Constitution.

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     It  is not  in dispute  that the school is governed by the 1969  Act. It  is an aided school receiving aid from the State Government  to the tune of 95% of its expenses. Sec. 3 of the 1969 Act provides that no employee shall be dismissed or removed  or reduced in rank except after an inquiry to be held in the manner prescribed therein. Sub-sec. (2) provides that no  order of  dismissal or removal or reduction in rank of  an  employee  shall  take  effect  unless  it  has  been confirmed by  the Deputy  Commissioner who  may refuse to do so, if  in his  opinion, the provisions of sub-sec. (1) have not been  complied with.  Sub-sec. (5)  permits an aggrieved person to prefer an appeal 484 against any  decision or  order of  the Deputy  Commissioner under the  section within  a period  of thirty  days to  the Commissioner. Sub-sec.  (6) provides  that the  order of the Commissioner shall be Final and binding between the parties.       The Deputy Commissioner and the Commissioner in terms  held  in both  the cases  that because  of the terms of the agreement entered  into by  each of  the teachers  with  the management of the school, it would not be open to them to go behind the  order and  to find  out the  true nature  of the order. It  was also  submitted on  behalf of  the respondent that  under   the  relevant  regulations  of  the  Education Department of  the Chandigarh  Administration every employee of an  aided school  has to enter into an agreement with the management of  the school.  Now if  the  management  of  the school intends  to circumvent  the mandatory  provisions  of Sec. 3  of the  1969 Act,  it has  merely to  terminate  the service by  giving one  month’s notice  as provided  in  the agreement  and  the  provisions  controlling  the  arbitrary powers of  the management  to hire  and fire can be rendered nugatory.  The  Deputy  Commissioner  cannot  take  an  easy recourse becoming  oblivious to his duties merely to pay lip sympathy to  the order  made by  the management  and decline even to  examine the allegation of malafide as also the true nature and  character of  the impugned order. In the garb of enforcing a term of the agreement what was sought to be done in this case was to impose the penalty of removal. And there is sufficient material on record to show that the action was malafide.       Turning  to the  case of  Manmohan Singh  Jaitla,  the Headmaster,  the   facts   herein   above   narrated   would affirmatively show  that he  was fully qualified and that he was  appointed   after  interview   and  selection.  He  was confirmed. He  received a  certificate  of  merit  from  the Chandigarh Administration. The moment the Managing Committee changed exposing  the  inter-se  squabbles  amongst  persons trying to  usurp control  of the  management of  the school, almost wholly  financed by  the public  exchequer, to  wreck vengeance against  those who  were appointed by the outgoing management which may have been defeated at the hustings, the agreement was  invoked and the services terminated. Throwing out persons  appointed by  out going  management is only one side of the coin. The moment the vacancy occurs, nepotism or corruption will  have field  day. Since  the new  management took, over  quietly within  a few  months,  service  of  the Headmaster was terminated on the ground that his service was no longer required. We repeatedly asked Mr. Prithvi Raj, 485 learned counsel  for the  respondent-school management as to how it would run a school without a Headmaster. We naggingly persisted with  the question  as to why it became necessary, obviously in  the middle  of the  term or session on January 31, 1983,  to dispense with the service of a Head Master and

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a Drawing  teacher on  the ground  that they  were no longer required. We waited for the answer in vain. Obviously, there could be none and that provides proof, if any was needed, to expose the  chink in the cupboard revealing the malafides of the newly  elected Managing  Committee. We cannot efface the feeling that  ignoring the  meritorious service for a period of seven  years the  service of  the appellant was dispensed with for  a reason  wholly untenable but only because he was appointed by  the outgoing  Managing Committee ignoring that his appointment  was confirmed by the competent authority of the Chandigarh Administration. Coupled with this is the fact that a  charge-sheet was served on the appellant on April 9, 1979 and  a disciplinary enquiry was commenced by the school management. But  the same  was withdrawn  and the  power  to terminate the  service under  the agreement  was invoked and exercised. This  gives a clear indication as to the punitive character of  the order  namely punishment  for  a  possible misconduct  and   also  colourable   exercise  of  power  by resorting to the agreement. Any agreement, not in consonance with the  statutory provisions beneficial to a class in need of protection  cannot be  given effect  to if  it stands  in derogation of  the mandatory provisions of the statute. Sec. 3 makes  it obligatory to hold a disciplinary enquiry before an employee  of an  aided school  can be  either  dismissed, removed or  reduced in  rank. In  order to  circumvent  this mandatory provision,  a resort  to  the  provisions  of  the agreement in  the context  of the  fact that  an enquiry was commenced and  given up clearly indicates the true nature of the order  as well as colourable exercise of power. And this was done  by the new Managing Committee which appeared to be keen to  dispense with  the service  of persons appointed by the outgoing  Managing Committee  . This smacks of malafide. For all these reasons the order of termination of service of the appellant is bad and ab initio void.       The  High Court  declined to  grant any  relief on the ground that  an aided  school is not ’other authority’ under Art. 12 of the Constitution and is therefore not amenable to the writ  jurisdiction of  the High  Court. The  High  Court clearly overlooked  the point  that Deputy  Commissioner and Commissioner are  statutory authorities  operating under the 1969 Act.  They are  quasi-judicial authorities and that was not disputed. Therefore, they will be comprehen- 486 ded in  the expression ’Tribunal’ as used in Art. 227 of the which confers  power of  superintendance over all courts and tribunals by  the High  Court throughout  the  territory  in relation to  which  it  exercises  jurisdiction.  Obviously, therefore, the  decision  of  the  statutory  quasi-judicial authorities which can be appropriately described as tribunal will  be  subject  to  judicial  review  namely  a  writ  of certiorari  by   the  High  Court  under  Art.  227  of  the Constitution. The  decision questioned before the High Court was  of   the  Deputy   Commissioner  and  the  Commissioner exercising powers  under Sec.  3 of  the 1969 Act. And these statutory authorities  are certainly  amenable to  the  writ jurisdiction of the High Court.       The  matter can  be viewed  from a  slightly different angle as  well. After the decision of the Constitution Bench of this  Court in Ajay Hasia etc.v. Khalid Mujib Sehrvardi & Ors. etc-(l)  the aided school receiving 95%- of expenses by way of  grant from  the public exchequer and whose employees have received  the statutory  protection under  the 1969 Act and who  is subject  to the  regulations made  the Education Department of  the Union Territory of Chandigarh as also the appointment of  Head Master  to be valid must be approved by

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the Director  of public  Instructions,  would  certainly  be amenable to  the writ  jurisdiction of  the High  Court. The High Court unfortunately, did not even refer to the decision of the  Constitution Bench  in Ajay Hasia’s case rendered on November 13,  1980 while  disposing of  the writ petition in 1983. In  Ajay Hasia’s  case, Bhagwati,  J. speaking for the Constitution Bench  inter alia  observed that ’the financial assistance of  the State is so much as to meet almost entire expenditure  of   the  corporation,  it  would  afford  some indication  of   the  corporation   being  impregnated  with governmental character.’  Add to  this the existence of deep and pervasive  State control  may afford  an indication that the  Corporation   is  a  State  agency  or  instrumentality Substituting the  words  ’public  trust’  in  place  of  the ’corporation’ and the reasons will mutatis mutandis apply to the school.  Therefore, also  the High Court was in error in holding that the third-respondent school was not amenable to the writ jurisdiction of the High Court.       It  would thus appear that the order of termination of service is  unsustainable  for  more  than  one  reason  and therefore, the  order of termination of service No. 58/83/20 dated January  31,1983 is  quashed and  set  aside  and  the appellant Manmohan  Singh Jaitla is reinstated in service as the Headmaster of the school with continuity (1)[1981] 2 S.C.R. 79. 487 in service  and full  backwages. If under the orders of this Court A  dated March  2, 1983,  May 2,  1983 and  subsequent orders, the appellant-Headmaster is paid his monthly salary, credit shall be taken for the same.       Amir  Singh, the Drawing Teacher has met with the same fate. He  was appointed  pursuant to  his application  for a vacant post  of a Drawing Teacher. Right from the inception, he was  a confirmed hand in the sense that he was not put on probation. Suddenly,  after the  new Managing  Committee got into saddle,  his service  was terminated  with effect  from March 4,  1983 on the ground that it was no longer required. No attempt  was made  before us to sustain the order on this untenable  ground.   Therefore,  the   only  distinguishable feature of  this  case  with  the  case  of  the  Headmaster Manmohan singh  Jaitla is  that no  charge-sheet was  served upon  the   petitioner  teacher.   Save  and   except   this difference,  all  the  reasons  which  weighed  with  us  in quashing the  order of termination of service of Headmaster- Mr Jaitla  would mutatis  mutandis apply to the case of this Drawing Teacher.  To restate  these reasons would merely add to the  length of  this judgment.  As a  corollary, the rule will have  to be  made absolute  after quashing  and setting aside the order of termination of service dated February 28, 1983 and  directing reinstatment  of  Drawing  Teacher  Amir Singh in  service  with  continuity  in  service  with  full backwages.       Accordingly,  C. A.  No. 2137/84  is allowed  and  the order terminating  the service  of Headmaster Manmohan Singh Jaitla is quashed and set aside as also the decisions of the Deputy Commissioner and the Commissioner and the Judgment of the High  Court are  quashed and  set aside.  The  appellant Headmaster Shri  Manmohan  Singh  Jaitla  is  reinstated  in service  with  continuity  in  service  and  full  backwages subject to  the fact  that if backwages have been paid under the orders of this Court, credit may be given for the same.       Rule  is made  absolute in  the writ petition filed by Drawing Teacher  Amir Singh  and the  order terminating  his service dated  February 28, 1913 is quashed and set aside as also the  orders of the Deputy Commissioner and Commissioner

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and he  is reinstated  in service with continuity in service with back-wages.       The  respondent-School management  shall pay the costs to both  the employees separately quantified in each case at Rs 1, 500. H.S.K.                          Petition and appeal allowed. 488